Employment Relations Amendment Act 2018 - Update

Introduction

The Employment Relations Amendment Bill (previously discussed here, here and here) passed into law on 11 December 2018 as the Employment Relations Amendment Act 2018.

Several reasonably minor “employer friendly” changes were introduced to the Act just prior to it becoming law, no doubt as a result of negotiations within the coalition. In particular:

Union access rights were pared back – a union representative will still need an employer’s consent to enter a workplace if there is no collective agreement in place, or being bargained for.
Employers now have a slightly greater ability to refuse to enter multi employer collective agreements.

This article outlines some of the key changes, focussing on the issues that may require employers (particularly larger employers) to make changes over the next few months.

When do larger employers have to stop using trial clauses?

Employers with 20 or more employees can include trial clauses in their employment agreements up until 5 May 2019. From 6 May 2019 those clauses will not be not lawful.

Any trial period validly included in an employment agreement before 6 May 2019 can still be used, so we will still see large employers dismissing under trial clauses up until early August 2019.

Immediate changes

From 12 December 2018, the following changes apply:

Union access

A union representative now won’t need to obtain the employer’s approval to enter a workplace if there is a collective agreement in place that covers workers in the workplace, or if bargaining has commenced for a collective agreement that will cover those workers. Otherwise, they still need to obtain the employer’s agreement (which can’t be unreasonably withheld).
Employers will be liable for a penalty if they refuse access to a union representative who is lawfully entitled to enter the workplace without the employer’s consent.
A union representative can also now come onto the site to assist non-union members with health and safety matters (they’ll need the employer’s consent if there is no collective in place, or being bargained for). Previously they could only come on site to discuss union matters, or issues related to their members.

Other changes

Deductions for partial strikes are no longer permitted.
Reinstatement is again the primary remedy in a personal grievance claim. If an employee seeking reinstatement is successful in their personal grievance claim, the onus will be on the employer to prove that reinstatement is not reasonable or practicable.

6 May changes

The following changes will apply from 6 May 2019:

Collective agreements – terms and coverage

The 30 day rule applies once again – if a collective is in place which covers the work of a new employee, then the terms of that collective will apply to the new employee for their first 30 days of employment (along with any agreed no less favourable terms). After the 30 days ends then the employer and new employee can agree on different terms, assuming the new employee hasn’t joined the union.
Employers will have to tell new and prospective employees about the existence of the collective agreement, how to contact the union, and provide a copy of the collective agreement.
Employers also have to provide information about the new employee to the union (unless the new employee objects).
If the union asks, employers will also be required to provide information about the union’s role and functions to new and prospective employees. The union must provide hard copies of this information, so that there is no cost to the employer.

Vulnerable workers

Employers with less than 20 employees will no longer be exempt from the requirement to employ vulnerable employees on their same terms and conditions when they buy a business (or when they contract for, or insource work).
The types of work defined as vulnerable can be updated by the Governor-General on the recommendation of the Minister.

Rest and meal breaks

The widely available flexibility around meal breaks has been removed.

Rest breaks can still be taken at agreed times (noting that the employee’s agreement must be ongoing – the employee doesn’t have to accept different break times set out in their employment agreement if they’d prefer to take breaks at the times set out in the legislation).

However, unless the employee agrees otherwise they are entitled to at least a 10 minute paid rest break after two hours of work, a half hour unpaid meal break after four hours of work, and a further 10 minute paid rest break after six hours of work, with that pattern repeating for work periods of more than eight hours.

Exceptions to this rule are now very limited (essential services and national security).

Collective bargaining

Parties bargaining for a collective agreement must conclude that agreement unless there are genuine reasons, based on reasonable grounds, not to. Employers therefore aren’t allowed to object “in principle” to collective agreements.
However employers can object to being involved in multi-employer collective agreements, if that objection is based on reasonable grounds (the wider ability for employers to opt out of multi-employer collective bargaining has been repealed).

Other union related changes

Union delegates are entitled to reasonable paid time to represent employees.
Collective agreements must contain information about the wages or salary payable to employees covered by that agreement (they must at least spell out the minimum pay rates, and how those rates increase).

11 June 2019 changes

From 11 June 2019 discrimination in employment on the grounds of an employee’s union membership status or involvement in union activities will be grounds for a personal grievance claim, widening the grounds from the current ground of “involvement in the activities of a union”.

Conclusion

Please contact our employment law team if we can help you prepare for these changes.

Employment Relations Amendment Act 2018 - Update

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